Arkansas Supreme Court appeal upholds decision in Pennington lawsuit

Thursday

Oct 22, 2009 at 9:47 PM

Joe Lamb

The Arkansas Supreme Court has upheld Faulkner County Circuit Judge David Clark’s 2008 ruling in a lawsuit filed by a local developer against the City of Conway.

The lawsuit, filed by PH LLC, claimed that the Conway City Council acted "arbitrarily and capriciously" in denying a rezoning from A-1 agricultural to R-1 residential at a narrow strip of land along Country Club Lane that would have allowed about 20 homes. Each home would have been valued at about $150,000 and built with one "siamesed" driveway to serve two homes.

Clark ruled that the city acted appropriately in denying the rezoning on the merits of this development, prompting PH LLC, headed by John Pennington, to seek the appeal with the Arkansas Supreme Court.

The higher court found that Clark "did not clearly err in finding that there were legitimate, reasonable concerns about rezoning the property," according to an opinion released on Thursday.

The council denied the rezoning last October after hearing public opinion voiced during a city council meeting regarding the number of driveways posing a safety issue to pedestrian and vehicle traffic and concerns that the so-called "starter homes" would be used as rental property in an area neighbors felt was unsuitable.

Alderman Mark Vaught was alone in voting to allow the rezoning. Though Vaught said during the meeting that he too didn’t "like the idea of what was going in there," in the context of a zoning decision, he said, the council was charged with weighing only the zoning issue’s merits and not the merits of whatever development could occur on the property, given that it’s within the bounds of zone-specific regulations.

Also, Vaught said, Pennington was not required to disclose his intentions for the property in the first place. The council probably would have asked, he said, "but he might or might not have told us."

Bryan Patrick, the city’s director of planning and development, said at the time that R-1 residential would seem to be "the least obtrusive, the least heinous zoning in the whole city," as it allows only single-family residential homes.

Patrick added at the time that in his nine years with the department, he’d never seen a rezoning to R-1 meet resistance or fail to find council approval. Assistant Planning Director Ken Pickett, who had at the time been with the department for 18 years, said he couldn’t recall a similar instance either.

The council invited Pennington to pursue Planned Unit Development (PUD) zoning, in which the council is given authority to control almost all aspects of a development in the aim of, ideally, striking a compromise to best suit the needs of the city, concerned neighbors and the developer. They asked Patrick to work on development options for the land in this interest.

Instead, Pennington decided to pursue the legal avenue, hoping that a court would overturn the council’s zoning decision and in the meantime declaring the land, still zoned A-1 agricultural, as a "hay farm."

Pennington said in a statement released by e-mail on Thursday that though his "best arguments ... were unsuccessful in persuading the Supreme Court to overturn the circuit court’s decision," he was "pleased we were able to clarify some land use law in Arkansas as it pertains to rezoning actions taken by local city councils," referring to the Supreme Court’s decision over the course of reviewing the case that zoning actions taken by local city councils are legislative, rather than administrative decision.

As they are legislative actions, Pennington wrote, "potentially if a citizen wished to challenge the council’s rezoning decision, one option they have is the right to a voter referendum."

As for the future of Pennington’s property, which he purchased before applying for the rezoning, Pennington’s statement indicates that he may pursue the PUD option.

"While PUD is not our choice, the city of Conway and Arkansas court system have implored us to submit an acceptable PUD for the property," he wrote. "We must design a PUD that mollifies the concerns of the city mainly increased safety for both vehicular and pedestrian traffic. The PUD must also balance the neighbors’ concerns of compatible homes that are aesthetically pleasing and comparable in size while preserving existing property values, all the while producing an end product that is an affordable community, as well as financially viable."

One option to mollify traffic concerns mentioned was the construction of an "alleyway" running the length of the property behind the homes, thereby theoretically reducing the number of vehicle ingress/egress points from the proposed 10 to one or two, though this option would require that the property be zoned as a PUD.

Pennington wrote on Thursday that he saw "no other option available to me other than some variation of an interior street to move ‘traffic’ within the development.

"As for the curb cuts," he continued, "that still remains very much unknown."

As it’s been almost exactly a year since the council denied Pennington’s zoning request, Patrick said, Pennington may immediately begin the rezoning process anew.

(Staff writer Joe Lamb can be reached at 505-1238 or by E-mail at joe.lamb@thecabin.net. Send us your news at www.thecabin.net/submit.)

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